An attorney who teaches college courses on constitutional law, has a radio program to address those issues and still is engaged in several campaigns on behalf of the United States Justice Foundation has concluded that the Transportation Security Administration’s new invasive screening procedures likely will be struck down by the courts.
“Cases on the 4th Amendment seem to set a clear pattern that airport screening is permissible and will be upheld,” wrote Michael Connelly, a retired attorney and U.S. Army veteran who practiced law for decades in Baton Rouge, La., specializing in cases involving the Bill of Rights.
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He currently teaches four law courses including one on constitutional law, has a radio program called “Our Constitution” and is an author.
“However, all of the cases made two other very important points,” he continued. “First, any searches must be minimally intrusive on the individual being searched and second, the searches must be effective in screening out weapons and terrorists.
“I believe it can be effectively argued that neither of these criteria is met by the TSA system of full body scans and pat-downs,” he said.
His analysis is to appear on the web pages for the Justice Foundation, which among other causes has been monitoring the situation involving the enhanced screening procedures, instituted on the orders of President Obama, that involve x-rays revealing an essential nude image of airline passengers or a pat-down that includes what critics have described as physical groping of passenger’s intimate body parts.
Connelly got his Juris Doctorate from Louisiana State and practiced law in Louisiana for 26 years. He specialized in issues involving the 1st, 2nd, 4th, 5th, 6th, 9th and 10th Amendments. He’s authored “The Mortarmen” about his father’s World War II experiences, “Riders in the Sky: The Ghosts and Legends of Philmont Scout Ranch” and “Amayehli: A Story of America.”
His blog was launched to deal with the efforts of the current Congress and executive branch to restrict the constitutional rights of Americas. He’s worked with the USJF since its founding in 1979.
“There is no doubt that the use of the full body scanners and alternate pat-downs has raised the bar when it comes to intrusive warrantless searches of individuals at airports and other locations,” he said.
On its face, the 4th Amendment protects Americans from warrantless searches, stating, “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
He explains that in the past few decades several exemptions have been created by the courts that would allow warrantless searches – called mostly “administrative searches.”
“These searches fall under several limited categories and suspicionless checkpoints is one of these. Under this doctrine a person can be searched even though there is no probable cause for a search and he or she is not directly suspected of having committed or intending to commit a crime,” he said.
Courts have found in the past that such circumstances arise when “the gravity of the public concerns served by the seizure, the degree to which the seizure advances the public interests, and the severity of the interference with individual liberty.”
In fact, one of the cases, United States v. Hartwell from 2006, that finds long-standing airport security screening procedures acceptable was written by Supreme Court Justice Samuel Alito while he was on the 3rd U.S. Circuit Court of Appeals.
Other cases have found, for example, that sobriety checkpoints on state roads are reasonable because of the state’s interest in preventing drunken driving and the degree of intrusion on individual motorists “who are briefly stopped.”
Connelly explained that past cases have dealt with the constitutionality of metal detectors, the use of hand-held scanners and in rare circumstances, pat-downs that do not involve contact with a person’s private parts.
“There is no question that the full body scanners amount to a strip-search and that has not been upheld as permissible in the general airport security plan. In fact, the Supreme Court has recently given a definite thumbs down to strip-searches that are warrantless and do not meet the probable cause test. Safford Unified School District #1 v. Redding [a 2009 case] held that a strip-search of a high school girl was excessively intrusive and violated her rights. This was despite the fact that the school officials had reason to believe that she might have prescription drugs on her person,” he found.
“There is no such suspicion to justify these searches at airports. They are very intrusive because in effect passengers must submit their nude bodies to visual examination by complete strangers. The alternative is not much better since it allows TSA agents to pat down a person including the most intimate parts of a person’s anatomy,” he suggested.
Secondly, there is the “serious question of effectiveness.”
“TSA officials are quick to defend these techniques by pointing to the so-called ‘underwear bomber.’ Since a terrorist may not be carrying a weapon or explosive device that is made of metal it is true that it will not be picked up by the standard metal detector. The explosive powder being carried by the underwear bomber would probably have been found by a thorough pat-down, but according to experts not by the body scanner. Since the pat-down is an alternative to the body scanner it may never have occurred in that situation.”
In fact, a peer-reviewed scientific study reveals that the TSA’s full-body imaging machines could be fooled by terrorists who simply would mold explosives to conform to their bodies.
“There is scant evidence that many non-metal explosive devices will be detected by the body scanner. Plastic explosives are a prime example of this since they can be molded to look like part of the body. These deficiencies have been recognized by many experts in Europe,” Connelly said.
Third, he cited the “potential health risk” from the scanners.
“There are … concerns being raised about the effects of intense radiation on people with immune system deficiencies, as well as possible altering of DNA in individuals, and sperm counts in men. In addition, there has been no determination about the possible health risks to young children, seniors, or pregnant women and their unborn children.
“Members of the scientific community and medical profession who are talking about these issues have not been reassured by the broad and unsubstantiated assurances by the TSA that there is nothing for people to worry about,” he said.
Fourthly, a challenge might be mounted based on the suggestion that certain categories of people get a free pass.
“CAIR [Council on American-Islamic Relations] has already demanded that Muslim women wearing traditional clothing be excluded from the full body scans and that TSA officials only pat down their heads and necks. This is apparently being seriously considered by Janet Napolitano. If agreed to, it would make the entire program even more ineffective and further raise serious equal protection issues,” he said.
“The most effective program in the world for protecting airports and airplanes is the one adopted by Israel. It does not include full body scans or pat-downs, but instead uses ‘profiling’ to identify potential terrorist.”
The procedures already are being targeted by several lawsuits brought on behalf of pilots and passengers alike.
The issue of the invasive searches has erupted into headlines and protests during the last few weeks as the TSA rolled out new requirements that demand passengers go through a scanning process through which essentially nude images are produced for TSA agents to screen, or submit to a hands-on full-body pat-down that includes agents touching private areas of the passengers’ bodies.
There also have been announced state plans to prosecute TSA agents who violate state pornography or sexual assault laws, and doctors have warned of a long list of contagious diseases agents could pass from one passenger to another in the process. There also have been warnings the scanning machines could cause cancer.
Further, a petition, already signed by tens of thousands, was launched demanding action against the intrusive airport screening procedures implemented by Janet Napolitano, and a campaign was assembled to allow Americans to send a letter to Congress, President Obama and others telling them exactly should happen with the program.